Trump Promotes Original ‘Travel Ban,’ Eroding His Legal Case

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The fight over President Trump’s travel ban on people from six Muslim-majority countries has reached the Supreme Court. But some experts say Trump’s tweets may undermine his chances of winning the case.Published OnJune 7, 2017CreditImage by Al Drago/The New York Times

WASHINGTON — President Trump has excellent lawyers. They have a challenging client.

In a series of Twitter posts Monday that continued into the evening, Mr. Trump may have irretrievably undermined his lawyers’ efforts to persuade the Supreme Court to reinstate his executive order limiting travel from six predominantly Muslim countries, according to legal experts.

Saying he preferred “the original Travel Ban, not the watered down, politically correct version” he had issued in March, Mr. Trump attacked both the Justice Department and the federal courts. He also contradicted his own aides, who have suggested he was causing a pause in travel, by calling the order “what we need and what it is, a TRAVEL BAN!” He said it would be imposed on “certain DANGEROUS countries” and suggested that anything short of a ban “won’t help us protect our people!”

There is a reason lawyers generally insist that their clients remain quiet while their cases move forward, said Josh Blackman, a professor at South Texas College of Law in Houston.

“Talkative clients pose distinct difficulties for attorneys, as statements outside the court can frustrate strategies inside the court,” Professor Blackman said. “These difficulties are amplified exponentially when the client is the president of the United States, and he continuously sabotages his lawyers, who are struggling to defend his policies in an already hostile arena. I do not envy the solicitor general’s office.”

Even a lawyer with strong ties to the administration said Mr. Trump was hurting his chances in the Supreme Court and undercutting the work of the Justice Department’s elite appellate unit.

George T. Conway III, who withdrew last week as Mr. Trump’s nominee for assistant attorney general for the civil division and whose wife, Kellyanne Conway, is the president’s counselor, commented on one of Mr. Trump’s posts.

“These tweets may make some ppl feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what actually matters,” he wrote in his own Twitter post, referring to the Office of the Solicitor General and the Supreme Court of the United States. “Sad.”

Still, some administration supporters said the court should not consider the tweets. While looking beyond the letter of the order might be appropriate in domestic policy, the president has a freer hand in foreign policy, said David B. Rivkin Jr., a lawyer in the administrations of Ronald Reagan and George Bush. “As a constitutional matter, as a legal matter, it should make absolutely no difference,” he said of the president’s extracurricular messaging.

Last week, lawyers in the solicitor general’s office filed polished briefs in the Supreme Court. They urged the justices to ignore incendiary statements from Mr. Trump during the presidential campaign, including a call for a “Muslim ban.” The court should focus instead on the text of the revised executive order and statements from Mr. Trump after he had taken the inaugural oath to “preserve, protect and defend the Constitution,” the briefs said.

Mr. Trump, his lawyers said, was now a changed man, alert to the burdens and responsibilities of his office.

“Taking that oath marks a profound transition from private life to the nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the nation that the Constitution reposes in the president,” they wrote.

On Twitter early Monday, though, Mr. Trump appeared to say that the latest executive order was of a piece with the earlier one, issued in January, and with his longstanding positions.

In calling the revised order “politically correct,” Mr. Trump suggested that his goal throughout had been to exclude travelers based on religion. And in calling the revised order “watered down,” he made it harder for his lawyers to argue that it was a clean break from the earlier one, which had mentioned religion.

The Supreme Court has asked people and groups challenging the executive order to file their responses to the government’s briefs next Monday. Those responses will almost certainly rely on Mr. Trump’s tweets in arguing that the justices should not revive the order. The court will probably act on the government’s requests in the coming weeks.

In his posts, Mr. Trump seemed to betray a misunderstanding of how two branches of the federal government work. His criticism of the Justice Department was misplaced, because it works for him. He could have insisted that it defend his original order. It was Mr. Trump’s decision, too, to issue the revised order.

Mr. Trump also suggested that the Justice Department could ask the Supreme Court to impose a “much tougher version” of his executive order. But the court’s role is limited to evaluating the lawfulness of the current order.

Insulting judges is also generally a poor litigation strategy. But Mr. Trump also posted that “the courts are slow and political!”

Mr. Trump’s adversaries certainly welcomed his tweets.

“It just adds to the mountain of already existing evidence that the government has had to ask the court over and over to ignore,” said Omar Jadwat, a lawyer with the American Civil Liberties Union, which represents people and groups challenging the law. “Blinding the courts to a reality that everyone else is aware of is never an attractive position, but is especially problematic when you have to ignore in real time what’s being said by the president of the United States.”

Neal K. Katyal, who represents Hawaii in a separate challenge to the order, said there was a yawning gap between Mr. Trump’s tweets and his lawyers’ filings.

“The president’s statements, before, during and after his inauguration, continually demonstrate what his so-called travel ban is really about,” Mr. Katyal said. “It’s not surprising his story and his tweets don’t match up with what the solicitor general has been trying to say in court.”

There was also daylight between the president and his aides about what to call the executive order.

“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Mr. Trump wrote.

But his own staff members had insisted it was not a travel ban. Sean Spicer, the White House press secretary, spent much of one early briefing telling reporters not to call it that. “It’s not a travel ban,” Mr. Spicer insisted. “When we use words like travel ban, that misrepresents what it is.”

At the time, John F. Kelly, the secretary of homeland security, also rejected the phrase. “This is not a travel ban,” he said. “This is a temporary pause that allows us to better review the existing refugee and visa vetting system.”

Mr. Trump’s posts came as Ms. Conway went on NBC’s “Today” show and chastised the news media for focusing too much on the president’s Twitter feed, calling it an “obsession with covering everything he says on Twitter and very little of what he does as president.”

The revised executive order, which the president criticized on Monday, took Iraq off the list of countries that would be affected and made clear that the restrictions did not apply to those who held green cards or valid visas. It also eliminated a provision that seemed to prioritize Christian refugees for entry.

The revised order, like the first, barred all refugees from entering the country for 120 days. It limited entry for 90 days for visitors from six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.

“In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe,” Mr. Trump wrote on Monday.

The administration said it chose those six nations and Iraq from a list of “countries of concern” identified in a law signed by President Barack Obama in 2015. But experts have said that since the Sept. 11 attacks, no one has been killed in the United States in a terrorist attack by anyone who emigrated from or whose parents emigrated from any of those nations.

This was not the first time the president had expressed second thoughts about revising the original order. In March, after a Federal District Court in Hawaii blocked the revised version, Mr. Trump complained that it was only “a watered-down version of the first order” and told a rally of supporters that “I think we ought to go back to the first one and go all the way” to the Supreme Court, “which is what I wanted to do in the first place.”